Opinion of Advocate General Kokott delivered on 31 May 2018.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2018:364
• Date: 31 May 2018
• Docket Number: C-244/17
• Procedure Type: Recours en annulation - fondé

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 31 May 2018 (1)

Case C‑244/17

European Commission

v

Council of the European Union

(Action for annulment — Council Decision (EU) 2017/477 — Choice of the correct legal basis — Demarcation between the common foreign and security policy and the communitised policies — Agreement on Enhanced Partnership and Cooperation with the Republic of Kazakhstan — Adoption of the Rules of Procedure of the Cooperation Council and establishment of specialised subcommittees — Decision on the position to be adopted by the European Union within the Cooperation Council — Voting in the Council of the European Union with unanimity or by qualified majority (Article 218(8) and (9) TFEU, Article 16(3) TEU and Article 31(1) TEU))

I. Introduction

1. The legal debate surrounding the external competences of the European Union is extremely multi-faceted. The present dispute between the European Commission and the Council of the European Union involves the question of whether the position taken by the European Union with regard to decisions in an international body is to be determined by the Council unanimously or by a qualified majority in accordance with Article 218(9) of the Treaty on the Functioning of the European Union (‘TFEU’ or ‘the FEU Treaty’).

2. This question is being raised in the context of the Enhanced Partnership and Cooperation Agreement with the Republic of Kazakhstan (‘the Partnership Agreement’ or ‘the Agreement’). (2) The Cooperation Council that was established on the basis of this Agreement intended to issue rules of procedure and to set up a number of specialised subcommittees in 2017. The Council unanimously determined the position of the European Union for decisions of the Cooperation Council in relation to these matters with reference to Article 218(9) TFEU in conjunction with the first sentence of Article 31(1) of the Treaty on European Union (‘TEU’), as it was of the opinion that items of the common foreign and security policy (‘the CFSP’) were also concerned. By contrast, the Commission takes the view that solely Article 218(9) TFEU should have been applicable and the Council should have voted by a qualified majority, irrespective of whether or not matters relating to the CFSP were involved.

3. In terms of substantive law, the demarcation between the CFSP, on the one hand, and the external action of the European Union in the remaining ‘communitised’ policy areas, (3) on the other, has thus once more become the focus of interest. From a formal perspective, it must be clarified whether the requirement for a qualified majority is always and without exception applicable in the establishment of positions of the European Union within the meaning of Article 218(9) TFEU or whether the majority requirements are to be determined depending on the individual case, on the basis of Article 16(3) TEU and the first sentence of Article 31(1) TEU and, if applicable, of Article 218(8) TFEU.

4. By contrast to the proceedings relating to the Antarctic marine protected areas (Joined Cases C‑626/15 and C‑659/16) in which I am also delivering my Opinion today, in the present case I will not discuss whether the European Union may act alone on the international scene or whether the Member States must participate alongside it (‘mixed action’ or ‘mixed agreement’).

II. Legal context

5. The legal context of this case is determined by the primary legislative provisions of the Treaty on European Union and the FEU Treaty. In addition, reference must be made to the provisions of the Partnership Agreement with Kazakhstan.

A. Primary legislation

1. Institutional provisions of the Treaty on European Union

6. Since the entry into force of the Treaty of Lisbon, Title III of the Treaty on European Union (‘Provisions on the institutions’) contains the following general rule, in Article 16(3) TEU, on the majority requirements for voting in the Council:

‘The Council shall act by a qualified majority except where the Treaties provide otherwise.’

2. Provisions of the Treaty on European Union on external action

7. Chapter 1 of Title V of the Treaty on European Union contains ‘general provisions on the Union’s external action’, in particular Article 21 TEU, paragraph 1 of which reads as follows:

‘The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.

The Union shall seek to develop relations and build partnerships with third countries, and international, regional or global organisations which share the principles referred to in the first subparagraph. It shall promote multilateral solutions to common problems, in particular in the framework of the United Nations.’

8. Chapter 2 of Title V of the Treaty on European Union, which inter alia includes Articles 24, 31, 37 and 40 TEU, contains ‘specific provisions on the common foreign and security policy’.

9. The second subparagraph of Article 24(1) TEU provides:

‘The common foreign and security policy is subject to specific rules and procedures. It shall be defined and implemented by the European Council and the Council acting unanimously, except where the Treaties provide otherwise. The adoption of legislative acts shall be excluded. The common foreign and security policy shall be put into effect by the High Representative of the Union for Foreign Affairs and Security Policy and by Member States, in accordance with the Treaties. The specific role of the European Parliament and of the Commission in this area is defined by the Treaties. The Court of Justice of the European Union shall not have jurisdiction with respect to these provisions, with the exception of its jurisdiction to monitor compliance with Article 40 of this Treaty and to review the legality of certain decisions as provided for by the second paragraph of Article 275 of the Treaty on the Functioning of the European Union.’

10. Building on this, Article 31 TEU lays down inter alia the following in respect of decisions in the Council in the area of the CFSP:

‘1. Decisions under this Chapter shall be taken by the European Council and the Council acting unanimously, except where this Chapter provides otherwise. The adoption of legislative acts shall be excluded.

…

2. By derogation from the provisions of paragraph 1, the Council shall act by qualified majority:

…

– when adopting any decision implementing a decision defining a Union action or position,

...’

11. The power of the European Union to conclude international agreements in the area of the CFSP is set out in Article 37 TEU:

‘The Union may conclude agreements with one or more States or international organisations in areas covered by this Chapter.’

12. Finally, Article 40 TEU regulates the relationship between the CFSP and the communitised policy areas as follows:

‘The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union.

Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter.’

3. Provisions of the FEU Treaty on external action

13. In Part Five of the FEU Treaty (‘The Union’s external action’), Title V is dedicated to the international agreements of the European Union. This Title includes, inter alia, Article 218 TFEU, which, in extracts, reads as follows:

‘1. Without prejudice to the specific provisions laid down in Article 207, agreements between the Union and third countries or international organisations shall be negotiated and concluded in accordance with the following procedure.

…

8. The Council shall act by a qualified majority throughout the procedure.

However, it shall act unanimously when the agreement covers a field for which unanimity is required for the adoption of a Union act as well as for association agreements and the agreements referred to in Article 212 with the States which are candidates for accession. The Council shall also act unanimously for the agreement on accession of the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms; the decision concluding this agreement shall enter into force after it has been approved by the Member States in accordance with their respective constitutional requirements.

9. The Council, on a proposal from the Commission or the High Representative of the Union for Foreign Affairs and Security Policy, shall adopt a decision suspending application of an agreement and establishing the positions to be adopted on the Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement.

10. …’

B. The Partnership Agreement with Kazakhstan

14. The Enhanced Partnership and Cooperation Agreement between the European Union and its Member States, of the one part, and the Republic of Kazakhstan, of the other part, was signed on 21 December 2015 in Astana (Kazakhstan) and has been provisionally applied since 1 May 2016. On behalf of the European Union, the Council had previously approved the signing of the Agreement and the provisional application thereof by Decision (EU) 2016/123, (4) for which purpose it took Article 37 and Article 31(1) TEU...